Emily
A. Cardy, Committee for Public Counsel Services, for the
defendant.

David
F. O'Sullivan, Assistant District Attorney (Jennifer S.
Kirshenbaum, Assistant District Attorney, also present) for
the Commonwealth.

Present: Gants, C.J., Lenk, Hines, Gaziano, & Budd, JJ.

HINES,
J.

In
January, 2015, the defendant, Gaudy Asenjo, was convicted by
a Superior Court jury of three counts of
aggravated[1] rape of a child.[2] The complainant was the
defendant's niece, Sara, [3] who was fourteen years of age at
the time of the rape. The defendant appeals from the
convictions, claiming that the judge erred in (1)
interpreting the first complaint rule to require the
disclosure of the perpetrator's identity to the first
complaint witness and allowing a police officer to testify as
the first complaint witness; (2) allowing the complainant to
testify to multiple disclosures of the sexual assault in
violation of Commonwealthv.King,
445 Mass. 217 (2005), cert, denied, 546 U.S. 1216 (2006), and
its progeny; and (3) precluding expert testimony in support
of her defense based on battered woman syndrome. We conclude
that the essential feature of first complaint evidence is the
report of a sexual assault, not the identity of the
perpetrator. Consequently, the admission of the police
officer's testimony as first complaint evidence was
error, which, after viewing the evidence as a whole, was
prejudicial. We conclude also that the judge erred in
admitting the complainant's testimony as to her multiple
disclosures of the rape. Last, we conclude that a defendant
asserting duress under G. L. c. 233, § 23F, based on
battered woman syndrome, is not required to present
affirmative evidence of abuse as a predicate to the defense.
The judge erred in excluding the proffered expert testimony
on this ground. Therefore, based on the foregoing, we reverse
and order a new trial.

Background.

We
summarize the evidence the jury could have found. In
February, 2011, Sara and her twin sister spent most of their
February school vacation at the home of the defendant, their
maternal aunt. One evening, toward the end of the week, Sara,
Sara's sister, the defendant's daughter, the
defendant, and the defendant's then boy friend, Luis
Rivera, were present in the home socializing and drinking
alcohol. Rivera and the defendant had been in a relationship
for a long time, such that Sara considered him an uncle. That
evening, Sara was upset with her sister and the
defendant's daughter. Although they were all drinking
alcohol, the other girls were also smoking marijuana without
including Sara.

After
the other two girls went upstairs to go to bed, Sara stayed
downstairs talking with the defendant. At the time, Sara was
"really close" with the defendant and thought of
her as a "second mom." During the conversation, the
defendant inquired about Sara's sexual experience and
told Sara how satisfying her sexual relationship with Rivera
was. Later that evening, the defendant telephoned Rivera, who
had left the residence earlier, and asked him to return
because Sara wanted him to come back. After the defendant
told Sara that Rivera was returning, Sara stated that she had
not showered that day. The defendant instructed Sara to go
into the bathroom and wipe her vagina clean. The defendant
helped Sara remove her pants, and Sara cleaned herself. As
the defendant inspected Sara's vagina, she told Sara that
Rivera would like it and that he would be "really
happy."

Approximately
ten minutes later, Rivera arrived at the defendant's
home. The defendant suggested that the three of them go into
the bathroom, where Sara was instructed to lie down on the
floor on her back. After the door was closed and locked, the
defendant turned off the lights and illuminated the room with
the flashlight application on her cellular telephone. Rivera
pulled Sara's pants and underwear down, but left her
shirt on. Rivera performed oral sex on Sara, as the defendant
sat on the edge of the bathtub watching and asking Sara
whether she liked it. Sara did not answer, and instead
focused on her upcoming birthday so that she would not have
to think about what was happening to her. A few minutes
later, Rivera inserted something into Sara's vagina that
hurt her. Sara did not know whether it was his finger or his
penis. Rivera directed the defendant to perform oral sex on
Sara while he had vaginal intercourse with the defendant.

After
the assault ended, Sara went upstairs, where her sister and
the defendant's daughter were sleeping. Sara was scared
because Rivera was still in the home, but she eventually went
back downstairs to use the bathroom. Rivera asked Sara
whether she wanted to do it again, but she ignored him, used
the bathroom, and ran back upstairs without incident. Sara
was hurt and confused, thinking that it was her fault and
that she could have done something to stop it. The next
morning, the defendant did not speak about the assault, and
Rivera returned to the home to bring everyone breakfast.
Although Rivera did not speak to Sara that morning, he
touched her backside each time he was alone with her.

Sara
continued to visit the defendant's home after the
assault. Each time Sara visited, she tried to ensure that
Rivera was not present. A few weeks after the assault, Sara
asked the defendant whether it was possible that Sara was
pregnant because she was having stomach pains and had not
menstruated that month. The defendant stated that she did not
know whether Sara was pregnant, but that if Sara were, she
should tell her parents that the father was a boy from
school, rather than Rivera.

Over a
period of two years after the rape, Sara disclosed the attack
on four different occasions. Sara first disclosed the assault
within weeks of the incident when she told her cousin
Mary[4]
that Rivera had raped her at the defendant's home. Sara
mentioned the defendant's presence during the rape, but
did not disclose her participation. Sara did not mention the
defendant's participation because Sara still loved her
and did not want to get her into trouble. In December, 2012,
Sara disclosed the rape for the second time to her sister and
some of their friends at a sleepover while playing a game
they called "if you really knew me." Sara revealed
that the defendant was present when it happened but again did
not disclose her participation. Sara made the third
disclosure to her mother within days of the sleepover without
mentioning the defendant's role in the rape. Finally,
Sara repeated the details of the rape to Detective Ashley
Sanborn of the Danvers police department, revealing for the
first time the defendant's participation.[5]

Sanborn
appeared as the Commonwealth's first complaint witness
and testified that on January 2, 2013, she spoke with Sara
and Sara's family, at the family's request, at the
Danvers police station. After Sara's father left the
room, Sara disclosed that she had been raped by the defendant
and Rivera. Sara's sister also testified regarding
Sara's December, 2012, disclosure.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;D ...

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